EN SUPREME COURT
Legal Department
Originally: 2015/13927
The Verdict: 2016/5499
Decision Date: 21.03.2016
DIVORCE CASE – WHETHER THERE IS A FOREIGN ELEMENT TO THE CASE – THE BASICS OF THE CASE SHOULD BE EXAMINED ACCORDING TO TURKISH LAW – THE PROVISION SHOULD BE EXCESSIVELY PUNISHED
SUMMARY: According to paragraph (1) of article of the Turkish Citizenship Law; “…children who are Turkish citizens by birth and have permission to leave, and their children who are not adults registered in the exit document, military service obligation and election, entry into public duties and exemption, provisions related to the national security and public order of the Republic of Turkey are reserved” and their acquired rights related to social security are reserved, except for the right to import household goods, they will continue to enjoy the rights granted to Turkish citizens.
In this case, it is clear that the parties will benefit from the rights granted to Turkish citizens in accordance with the aforementioned amendment due to their being Turkish citizens by birth, and they will not have the status of “foreigners” in the divorce case. In this case, since there is no “foreign element” in the case, Article 1223 of the Law on Private International Law and Procedural Law applies. it is not possible for the article to be applied to this case. Therefore, there is no need to investigate the applicable law. Therefore, while the merits of the case should be examined from the point of view of Turkish Law, it is contrary to the procedure and the law to make a decision without taking this issue into account.
(403 SK Md. 20) (5901 SK Md. 28) (5718 SQ Md. 14)
Trial: At the end of the trial between the parties, the date and number shown above, the Decrees given by the local court were appealed by the plaintiff woman, the necessary evaluation was made by reading the minutes:
The court; In the divorce case filed by the plaintiff woman, it was decided that both parties should divorce by applying Austrian law on the grounds that they renounced their Turkish citizenship and resided in Austria. From the evidence collected, despite the fact that the parties are Turkish citizens, 20 of the Law No. 403. according to the article “permission to exit”, it is understood that they have lost their Turkish citizenship since 2003 and have become Austrian citizens.
pursuant to paragraph (1) of Article 28 of the Turkish Citizenship Law No. 5901; “…children who are Turkish citizens by birth and have permission to leave, and their children who are not adults registered in the exit certificate, military service obligation and selection, entry into public duties and exemption, provisions related to national security and public order of the State of the Republic of Turkey are reserved”, they will continue to benefit from the rights granted to Turkish citizens, except for the right to import household goods, in order to keep their acquired rights related to social security.
In this case,
it is clear that the parties will benefit from the rights granted to Turkish citizens in accordance with the aforementioned amendment due to their being Turkish citizens by birth, and they will not have the status of “foreigners” in the divorce case. In this case, since there is no “foreign element” in the case, 14/1 of the Law No. 5718 on Private International Law and Procedural Law. it is not possible for the article to be applied to this case. Therefore, there is no need to investigate the applicable law. Therefore, while the merits of the work should be examined in accordance with Turkish Law, it is contrary to the procedure and the law to make a written decision without taking this issue into account.
Conclusion:
For the above-mentioned reason, it was unanimously decided that the appealed decision should be overturned, that there is no room for examining other appeals based on the reason for overturning, that the appeal fee should be returned to the depositor if requested, and that the possibility of correction should be open within 15 days from the notification of this decision. 21.03.2016